Mohammad Idrish vs State of U.P. and Others

Satya Poot Mehrotra and Rajesh Chandra, JJ.—Supplementary Affidavit has been filed today on behalf of the petitioner. Let the same be taken on record.

From the averments made in the writ petition, it appears that the petitioner was having an electricity connection for commercial purpose. Recovery proceedings were initiated against the petitioner for recovery of the electricity dues amounting to Rs. 3,47,022 plus other charges by issuance of the Citation dated 9.6.2009 in respect of consumption of electricity by the petitioner in regard to the aforesaid electricity connection. Hence, the petitioner filed a writ petition being Writ Petition No. 6499 of 2009.

By the order dated 23rd December, 2009 passed by this Court, Civil Misc. Writ Petition No. 6499 of 2009 was disposed of permitting the petitioner to make representation before the respondent No. 3 in the said writ petition (Executive Engineer) within three weeks from the date of the said order. The Executive Engineer was directed to dispose of the representation filed by the petitioner by passing a reasoned and speaking order within a further period of two months.

It is averred in the writ petition that pursuant to the said order dated 23rd December, 2009, the petitioner made a representation dated 13th January, 2010 before the Executive Engineer concerned, but the said representation has not so far been decided by the Executive Engineer concerned. However, a Bill dated 14.3.2011 (Annexure-SA-3 to the Supplementary Affidavit) has been issued for an amount of Rs. 5,03,298 in regard to the regular electricity consumption in respect of the aforesaid electricity connection of the petitioner.

Shri H. P. Dube, learned counsel for the respondent Nos. 2 and 3, on the basis of instructions received by him, has stated that the aforesaid matter regarding regular consumption of electricity in respect of the electricity connection of the petitioner is not subject-matter of the present writ petition.

Shri H. P. Dube learned counsel for the respondent Nos. 2 and 3, on the basis of instructions received by him, has further stated that a checking was made in the premises of the petitioner on 17th February, 2010 and theft of electricity was allegedly detected. Consequently, provisional assessment for an amount of Rs. 1,43,608 was made against the petitioner.

Sri B. D. Mishra, learned counsel for the petitioner states that no provisional assessment was ever received by the petitioner.

Sri H. P. Dube, learned counsel for the respondent Nos. 2 and 3 states that no instructions have been received by him as to by which mode the assessment was sent to the petitioner. As no instructions have been brought to the notice of the Court as to the mode by which the provisional assessment was sent to the petitioner, the Court assumes that no such provisional assessment was received by the petitioner.

Sri H. P. Dube, learned counsel for the respondent Nos. 2 and 3 further states that as no objections were received from the petitioner, the Provisional Assessment was treated to be Final Assessment and recovery proceedings were initiated against the petitioner.

The Citation dated 1st February, 2011 (Annexure-1 to the writ petition) has been issued in this regard seeking to recover an amount of Rs. 1,43,630 plus other charges from the petitioner. The said Recovery Citation dated 1st February, 2011 has been impugned in the present writ petition. Therefore, the subject-matter of the present writ petition is the recovery proceedings against the petitioner pursuant to the assessment made on account of the alleged theft of electricity on 17th February, 2010.

Sri H. P. Dube, learned counsel for the respondent Nos. 2 and 3, on the basis of instructions received by him, has further stated that on 10th August, 2010, another checking was made in the premises of the petitioner, and theft of electricity was allegedly detected. Consequently, a first information report dated 10th August, 2010 (Annexure-4 to the writ petition) has been lodged against the petitioner. Further, a provisional assessment dated 30.9.2010, for an amount of Rs. 1,11,766, has been made in respect of the petitioner. However, the said matter is not the subject-matter of the present writ petition.

From the above narration brought to the notice of the Court it is clear that the subject-matter of the petition pertains to the checking made in the premises of the petitioner on 17th February, 2010 and the consequent assessment made in respect of the petitioner on account of the alleged theft of the electricity.

As noted above, since, the mode of sending provisional assessment dated 26th March, 2010 on account of the checking made on 17th February, 2010 has not been brought to the notice of the Court by the respondent Nos. 2 and 3, the Court presumes that such provisional assessment was never received by the petitioner.

In the circumstances, the petitioner was deprived of opportunity of hearing as contemplated under sub-section (3) of Section 126 of the Electricity Act, 2003 read with Clause 8.1 (b) (iii) of the U. P. Electricity Supply Code, 2005.

We may, however, note that copy of the provisional assessment has been supplied by Shri H. P. Dube, learned counsel for the respondent Nos. 2 and 3 to Shri B. D. Mishra, learned counsel for the petitioner, today.

In view of the above, we are of the opinion that interest of justice would be subserved if the writ petition is disposed of by giving opportunity of filing objections in respect of the provisional assessment before the respondent No. 3 (Executive Engineer) and directing the respondent No. 3 (Executive Engineer) to dispose of such objections within a stipulated period.

We accordingly, dispose of the writ petition with the following directions :

(1) Within four weeks from today, the petitioner will file objections before the Executive Engineer concerned (respondent No. 3) in respect of the provisional assessment dated 26th March, 2010.

(2) On receipt of such objections, the Executive Engineer (respondent No. 3) will proceed to decide such objections preferably within a period of six weeks of the receipt of such objections, after giving reasonable opportunity of hearing to the petitioner, by passing a speaking order in accordance with law.

(3) For a period of four months from today or till the disposal of the objections submitted by the petitioner as mentioned above, whichever is earlier, the recovery proceedings, pursuant to the Citation dated 1st February, 2011 (Annexure-1 to the writ petition) will remain stayed.

(4) In case, the petitioner fails to file any objections within the period mentioned in Condition No. 1 above, this order shall stand vacated, and it will be open to the concerned respondent to make the Final Assessment in accordance with law.

(5) The recovery against the petitioner will abide by the decision of the objections.